IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2025 ND 50
Nathan Zent, Appellant
v.
North Dakota Department
of Health and Human Services, Appellee
No. 20240222
Appeal from the District Court of Stark County, Southwest Judicial District, the
Honorable William A. Herauf, Judge.
AFFIRMED.
Opinion of the Court by Tufte, Justice.
Micah J. Olson, Bismarck, N.D., for appellant.
Tiffany J. Grossman, Assistant Attorney General, Bismarck, N.D., for appellee.
Amy E. Scherer, Washington, D.C., and Micah J. Olson, Bismarck, N.D., for
Amicus Curiae National Disability Rights Network in support of appellant.
Tammy P. Oltz, St. Paul, Minnesota, and Kylie Oversen, Fargo, N.D., Amicus
Curiae in support of appellant.
Zent v. NDDHHS
No. 20240222
Tufte, Justice.
[¶1] Nathan Zent appeals from a district court’s order for judgment affirming
an administrative law judge’s findings of fact, conclusions of law, and order that
affirmed the decision of the Division of Vocational Rehabilitation of the North
Dakota Department of Health and Human Services (DHHS) to discontinue
Zent’s services. On appeal, Zent argues that: (1) DHHS’s decision was based on
an erroneous construction of the statutes and regulations governing VR’s
services; and (2) the ALJ applied the incorrect standard of proof in affirming
DHHS’s decision. We affirm the district court’s judgment affirming DHHS’s
decision.
I
A
[¶2] Zent has spastic quadriplegic cerebral palsy, a neuromuscular condition
that affects his limbs, face, and trunk. The condition significantly impacts Zent’s
gross and fine motor skills. Zent relies on a motorized wheelchair for mobility
and has difficulty controlling his arm and hand movement. The condition also
affects Zent’s speech; he can speak short phrases but otherwise communicates
via an iPad with text-to-speech assistive technology. Zent can independently
type three to four words per minute using his iPad and predictive text. The
condition does not, however, affect Zent’s ability to think or process information.
Zent’s physician of over twenty years, a pediatric rehabilitation medicine
specialist, testified: “his cognitive skills are quite excellent as best I can tell.”
[¶3] Zent has been a student at Dickinson State University (DSU) since the fall
semester of 2015. He is pursuing a Bachelor of Arts in English with a Political
Science Minor. Zent takes two classes per semester, and at the time of the
administrative hearing in October 2023, he had three semesters left to complete
his degree.
1
[¶4] Zent has excelled academically at DSU. Four DSU faculty members
testified in support of Zent’s abilities. Each had had Zent as a student, and two
had also served as Zent’s academic advisor. They testified that Zent’s work was
excellent, that he earned an A in the courses he took with them, and that he was
consistently one of the strongest students in the class. Zent completed all
assignments on time or early. They each also testified to Zent’s ability to
communicate with faculty and peers. Zent actively participated in class
discussions and communicated with faculty both in person and via e-mail.
Although Zent would sometimes present prepared statements for discussion, he
also communicated in real-time using his own voice.
[¶5] Zent intends to pursue a career as a journalist or writer. To that end, he
has published twelve articles: ten in the Heart River Voice, a monthly
community newspaper in Dickinson, and two in Dakota Catholic Action. Three
of the articles were “feature articles” that Zent wrote during a summer internship
with the Heart River Voice. The publisher of the Heart River Voice testified that
Zent has always submitted his work on or before the deadline. She described his
work as “exceptional” and better than some of her other regular contributors.
B
[¶6] DHHS administers vocational rehabilitation services with federal funding
through the State Vocational Rehabilitation Services Program. 29 U.S.C. 720 et.
seq.; N.D.C.C. ch. 50-06.1. The State Rehabilitation Services Program is
authorized by the Rehabilitation Act of 1973 (“Act”), as amended by Title IV of
the Workforce Innovation and Opportunity Act. 29 U.S.C. 701 et seq., amended
by Pub. L. No. 113-128, tit. IV (2014).
[¶7] The purpose of the State Rehabilitation Services Program “is to assist
States in operating statewide comprehensive, coordinated, effective, efficient,
and accountable programs of vocational rehabilitation, each of which is: (A) an
integral part of a statewide workforce development system; and (B) designed to
assess, plan, develop, and provide vocational rehabilitation services for
individuals with disabilities, consistent with their strengths, resources,
priorities, concerns, abilities, capabilities, interests, informed choice, and
2
economic self-sufficiency, so that such individuals may prepare for and engage
in gainful employment.” 29 U.S.C. § 720(a)(2). Congress delegated rulemaking
authority to the Secretary of Education to administer and ensure compliance
with the Act.
29 U.S.C. § 709(c). Regulations promulgated by the Secretary of
Education in administration of the Act are codified in part 361 of title 34 of the
Code of Federal Regulations. 34 C.F.R. pt. 361.
[¶8] North Dakota accepted the provisions and benefits of the Act and
designated DHHS as the state agency responsible for administering vocational
rehabilitation services in accordance with the Act.
34 C.F.R. § 361.13; N.D.C.C.
§ 50-06.1-02; N.D. Admin. Code § 75-08-01-02. The North Dakota Division of
Vocational Rehabilitation is the subunit of DHHS specifically tasked with
carrying out North Dakota’s VR program. N.D.C.C. §§ 50-06.1-05, 50-06.1-06.
DHHS has rulemaking authority to “adopt rules necessary to carry out the
responsibilities of the department in conformity with any statute administered
or enforced by the department.” N.D.C.C. § 50-06-16. Rules promulgated by
DHHS in administration of the VR program are codified in N.D. Admin. Code
ch. 75-08-01.
[¶9] The primary purpose of the VR program is to help individuals with
disabilities “to prepare for and achieve an employment outcome.” An
employment outcome means:
a. Entering, advancing in, or retaining full-time or, if appropriate,
part-time competitive employment in the integrated market;
b. Supported employment; or
c. Satisfying any other type of employment in an integrated setting
that is consistent with the individual’s strengths, resources,
priorities, concerns, abilities, capabilities, interests, and informed
choice, including self-employment, telecommuting, and business
ownership.
N.D. Admin. Code § 75-08-01-01(7). An individual with a disability enjoys a
presumption of eligibility for VR services. N.D. Admin. Code § 75-08-01-17. Once
an applicant for VR services is determined eligible, the Division works with the
3
individual to develop an individualized plan for employment (“IPE”). 34 C.F.R.
§ 361.45; N.D. Admin. Code § 75-08-01-24. The IPE must include: (1) “[a] specific
employment outcome in an integrated setting, which must be consistent with the
unique strengths, resources, priorities, concerns, abilities, capabilities, interests,
and informed choice of the individual,” and (2) the specific VR services to be
provided, including assistive technology and personal assistance services. N.D.
Admin. Code § 75-08-01-24(10);
34 C.F.R. § 361.46(a)(1) (An IPE “must [i]nclude
a description of the specific employment outcome . . . that is chosen by the
eligible individual and is consistent with the individual’s unique strengths,
resources, priorities, concerns, abilities, capabilities, career interests, and
informed choice consistent with the general goal of competitive integrated
employment[.]”). The Division must review the IPE at least annually to assess
the individual’s progress toward the specified employment outcome.
34 C.F.R.
§ 361.45(d)(5); N.D. Admin. Code § 75-08-01-24(9).
[¶10] Zent received VR services from 2015, when he began his studies at DSU,
until May 2023, when his IPE expired and the Division discontinued his services.
Zent’s IPE identified an employment outcome of journalist or writer, and the
Division renewed its support of that employment outcome annually from 2015
to 2022. The Division provided Zent with a personal aide for five hours per day
during the semester, for a total of 25 support hours per week. An aide supported
Zent during class by helping to transcribe his words and facilitate his
communication with professors and peers. When not in class, Zent and his aide
worked from a study room while Zent completed his coursework. Zent can type
and navigate his iPad independently, but he does so slowly, and at times with
difficulty; the aide assisted Zent as needed with the logistics of completing his
work, i.e., typing and transcribing his words, moving the cursor, and copypasting.
[¶11] The Division supported an employment outcome of journalist or writer for
Zent until August 2022, when Zent’s new VR case manager, Catherine Quintane,
began to doubt the viability of that goal for Zent because of the amount of
support he needed to complete his coursework. Zent had a different VR case
manager until September 2021, when Quintane took over. Quintane originally
supported journalist or writer as an employment outcome for Zent, and she
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signed his IPE in May 2022. When Zent submitted his class schedule for fall 2022,
however, Quintane became concerned that Zent had requested the same amount
of support despite the fact that one of the two courses was an asynchronous
online class. Quintane testified:
And when I started asking about the levels of support, because
Nathan was coming to school every single day and I’m looking at
this going, But this is an asynchronous class, this is something he
could be doing online, this is something he could be doing on his
own time as he’s available to do it. I was not understanding the
supports that were being requested for this class. I began to take a
look at things and I’m going, Wait a minute, the levels of support
that he was needing to complete his classwork were significant. And
when I looked at what it would take for him to be competitively
employed for what he was going to school, the level of supports that
he would need would not be supported in a work environment, that
is when I began questioning, do we have the appropriate goal for
him to be successful in paid integrated employment.
[¶12] Quintane then began researching whether an employment outcome of
journalist or writer was appropriate for Zent given the amount of support he
needed to complete his coursework. Quintane testified to four areas of concern
she identified before ultimately concluding journalist or writer was an
inappropriate employment outcome for Zent: (1) Zent’s typing speed; (2) Zent’s
speech intelligibility; (3) the relative rarity and competitiveness of journalism
and writing jobs; and (4) Zent’s need for one-to-one support given his difficulties
typing and speaking.
[¶13] Zent’s typing speed was a primary concern for Quintane. She testified that
from her research, she had concluded that professional writers are expected to
type between fifty and eighty words per minute, whereas Zent can type three to
four words per minute. Further, even if VR services were to provide Zent with
EyeGaze technology—which was recommended by an Occupational Therapist—
users of EyeGaze type twelve words per minute, at most, which would still fall
significantly below the fifty words per minute minimum that Quintane had
determined. Quintane further concluded, upon reviewing job postings for
journalists and writers, that the ability to write quickly and meet short deadlines
5
was required. Zent’s speech intelligibility, determined to be 50% for a novel
listener, further inhibits his ability to communicate quickly and interact in real-time. Given the limited number of journalism and writing jobs in North Dakota
and in the U.S. generally, Quintane concluded that Zent’s limitations have an
outsized impact on the viability of journalist or writer as an employment
outcome for him.
[¶14] Quintane was especially concerned that Zent needed one-to-one support
to complete his coursework and that the amount of supports he needed had not
decreased since 2015. She was concerned that he needed twenty-five hours of
one-to-one support of an aide per six credit hours. She testified that she
concluded the employment outcome was inappropriate:
The amount of supports that he needs is not a reasonable
accommodation in an employment setting. He's getting one-to-one
supports 100 percent of the time. I’m sorry. There’s not — VR will
not — there’s not anyone that gets 100 percent supports. It’s not
something that an employer can do. It’s not an expected reasonable
accommodation. Without those 100 percent supports of having
somebody help him do the things that he needs to do, to do the
typing, to do all of those things, I just couldn’t see it happening.
Alicia Halle, the assistant director of North Dakota’s VR program, shared
Quintane’s concerns.
[¶15] Zent appealed the Division’s decision to discontinue his VR services,
and after a hearing, an ALJ affirmed. DHHS denied Zent’s petition for
reconsideration. Zent then sought review in the district court, which affirmed
the ALJ’s decision. Zent timely appealed to this Court. On appeal, Zent argues
that DHHS’s decision to discontinue Zent’s services is based on a misapplication
of the statutes and regulations governing VR services. Zent also argues the ALJ
applied the incorrect standard of proof in affirming DHHS’s decision.
6
II
A
[¶16] “Courts exercise limited review in appeals from administrative agency
decisions. On appeal from the district court, we review the administrative
agency’s decision in the same manner that the district court reviewed the
agency’s decision. N.D.C.C. § 28-32-49.” Jahner v. North Dakota Dep’t of Health &
Hum. Servs., 2023 ND 71, ¶ 6,
989 N.W.2d 466. Under N.D.C.C. § 28-32-46, a
district court must affirm an administrative agency’s order unless:
1. The order is not in accordance with the law.
2. The order is in violation of the constitutional rights of the
appellant.
3. The provisions of this chapter have not been complied with in the
proceedings before the agency.
4. The rules or procedure of the agency have not afforded the
appellant a fair hearing.
5. The findings of fact made by the agency are not supported by a
preponderance of the evidence.
6. The conclusions of law and order of the agency are not supported
by its findings of fact.
7. The findings of fact made by the agency do not sufficiently
address the evidence presented to the agency by the appellant.
8. The conclusions of law and order of the agency do not sufficiently
explain the agency’s rationale for not adopting any contrary
recommendations by a hearing officer or an administrative law
judge.
N.D.C.C. § 28-32-46.
[¶17] “In reviewing the agency’s findings of fact, this Court does not make
independent findings or substitute our judgment for the agency’s judgment.
Rather, we decide whether a reasoning mind reasonably could have determined
the findings were proven by the weight of the evidence from the entire record.
The application and interpretation of a statute is a question of law. Questions of
law are fully reviewable in an administrative appeal.” Jahner, 2023 ND 71, ¶ 7
(cleaned up).
7
B
[¶18] Zent argues DHHS’s decision to discontinue his VR services was based on
a misapplication of the statutes and regulations governing VR’s services. The
purpose of the State Vocational Rehabilitation Program is to assist states in
providing vocational rehabilitation services to disabled individuals “so that they
may prepare for and engage in competitive integrated employment and achieve
economic self-sufficiency.” 34 CFR § 361.1. DHHS discontinued Zent’s VR
services because it concluded that Zent is unlikely to achieve competitive
integrated employment with an employment outcome of journalist or writer.
[¶19] The ALJ summarized DHHS’s determination:
The Department determined Zent is not able to work without one- to-one support all the time and that he does not have a viable goal.
The Department determined he cannot work in the required,
competitive integrated environment earning at least minimum wage
because he would not be accommodated by an employer at the level
he requires and he [is] unable to compete (i.e., get the ideas from his
mind to paper in a timely manner), so as to earn minimum wage in
an integrated employment situation. The Department determined
the goal of a writer or author sets Zent up for failure in a competitive
integrated employment setting. In short, although Zent can produce
quality work, quantity of work [is] required to write in a competitive
integrated employment setting.
The ALJ then affirmed DHHS’s decision, concluding: “Although [Zent] pursuing
employment as a journalist or author is consistent with his unique strengths,
resources, priorities, concerns, abilities, capabilities, career interests and his
informed choice, it is not consistent with the general goal of competitive
integrated employment. The Division showed by the preponderance of the
evidence that Zent cannot work in a competitive integrated environment as a
freelance journalist or author.”
[¶20] A central issue in this case is whether DHHS erred in determining that
Zent’s preferred employment outcome of writer or journalist is inconsistent with
the goal of competitive integrated employment required for VR services. Under
34 C.F.R. § 361.5(c)(9), competitive integrated employment means work that:
8
(i) Is performed on a full-time or part-time basis (including self-employment) and for which an individual is compensated at
a rate that-
(A) Is not less than the higher of the rate specified in section
6(a)(1) of the Fair Labor Standards Act of 1938 (29 U.S.C.
206(a)(1)) or the rate required under the applicable State
or local minimum wage law for the place of
employment;
(B) Is not less than the customary rate paid by the employer
for the same or similar work performed by other
employees who are not individuals with disabilities
and who are similarly situated in similar occupations by
the same employer and who have similar training,
experience, and skills; and
(C) In the case of an individual who is self-employed, yields
an income that is comparable to the income received by
other individuals who are not individuals with
disabilities and who are self-employed in similar
occupations or on similar tasks and who have similar
training, experience, and skills; and
(D) Is eligible for the level of benefits provided to other
employees; and
(ii) Is at a location—
(A) Typically found in the community; and
(B) Where the employee with a disability interacts for
the purpose of performing the duties of the position
with other employees within the particular work unit
and the entire work site, and, as appropriate to the work
performed, other persons (e.g., customers and vendors),
who are not individuals with disabilities (not including
supervisory personnel or individuals who are
providing services to such employee) to the same extent
that employees who are not individuals with
disabilities and who are in comparable positions
interact with these persons; and
(iii) Presents, as appropriate, opportunities for advancement that
are similar to those for other employees who are not
individuals with disabilities and who have similar positions.
34 C.F.R. § 361.5(c)(9)(i). Whether a job position meets the requirements of
competitive integrated employment is a determination that the Division must
9
make on a case-by-case basis. U.S. Dep’t of Educ., Off. of Special Educ. & Rehab.
Servs., Rehab. Servs. Admin., FAQ 21-03, “Criterion for an Integrated
Employment Location in the Definition of ‘Competitive Integrated Employment’
and Participant Choice” (Mar. 8, 2021).
[¶21] This Court interprets regulations in the same manner as statutes:
Administrative regulations are derivatives of statutes and are
construed under rules of statutory construction. Statutory
interpretation is a question of law, fully reviewable on appeal. The
objective in interpreting regulations is to determine the drafter’s
intent by first looking at the language itself. Words are given their
plain, ordinary, and commonly understood meaning, unless defined
or unless a contrary intent plainly appears. Regulations are
construed as a whole and are harmonized to give meaning to related
provisions. If the relevant language is clear and unambiguous, the
letter of it is not to be disregarded under the pretext of pursuing its
spirit.
Blue Appaloosa, Inc. v. N.D. Indus. Comm’n, 2022 ND 119, ¶ 8,
975 N.W.2d 578.
[¶22] The Act and its accompanying federal regulations clearly state that the
provision of vocational rehabilitation services is premised on helping
individuals with disabilities to achieve competitive integrated employment. An
IPE “must [i]nclude a description of the specific employment outcome . . . that is
chosen by the eligible individual and is consistent with the individual’s unique
strengths, resources, priorities, concerns, abilities, capabilities, career interests,
and informed choice consistent with the general goal of competitive integrated
employment[.]”
34 C.F.R. § 361.46(a)(1). “Whether an employment outcome is
‘consistent’ with the listed attributes ultimately is subject to the State’s
determination.” Reaves v. Missouri Dep’t of Elementary & Secondary Educ.,
422 F.3d
675, 680 (8th Cir. 2005). To satisfy the requirements of competitive integrated
employment, a job position must meet each of the elements articulated under
34
C.F.R. § 361.5(c)(9). DHHS’s determination that Zent’s communication and
typing difficulties preclude him from achieving competitive integrated
employment as a journalist or writer is consistent with the plain language of the
Act and corresponding regulations.
10
[¶23] Under 34 C.F.R. § 361.5(c)(9)(i), to constitute competitive integrated
employment, a job position must provide certain minimum compensation.
34 C.F.R. § 361.5(c)(9)(i). In the case of hourly or salaried work, a job position
must pay at least minimum wage.
34 C.F.R. § 361.5(c)(9)(i)(A). “In the case of an
individual who is self-employed,” a job position must “yield[] an income that is
comparable to the income received by other individuals who are not individuals
with disabilities and who are self-employed in similar occupations or on similar
tasks and who have similar training, experience, and skills.”
34 C.F.R.
§ 361.5(c)(9)(i)(C). DHHS determined that Zent’s typing speed rendered him
incapable of achieving competitive integrated employment as a freelance
journalist or writer, because he is unable to produce articles at a rate that would
earn “an income that is comparable to the income received by other individuals
who are not individuals with disabilities.”
Id.
[¶24] Competitive integrated employment also requires that a job position be in
an integrated setting “typically found in the community” and where an
employee with a disability interacts with others to the same extent as nondisabled employees in similar positions.
34 C.F.R. § 361.5(c)(9)(ii). Zent relies on
Department of Education guidance: “[t]o be ‘typically found in the community,’
an employment location setting should be: [f]ound in the competitive labor
market; and [n]ot formed for the purpose of employing individuals with
disabilities.” U.S. Dep’t of Educ., Off. of Special Educ. & Rehab. Servs., Rehab.
Servs. Admin., FAQ 21-03, “Criterion for an Integrated Employment Location in
the Definition of ‘Competitive Integrated Employment’ and Participant Choice,”
Q7 (Mar. 8, 2021) (citing 62 Fed. Reg. 6310–11 (Feb. 11, 1997); 81 Fed. Reg. 55642–
43 (Aug. 19, 2016)). Although freelance journalist jobs as well as full- and part-time positions are “[t]ypically found in the community,” Zent’s communication
difficulties preclude him from interacting “to the same extent [as] employees
who are not individuals with disabilities and who are in comparable positions
interact with these persons.”
34 C.F.R. § 361.5(c)(9)(ii)(A)–(B). Zent speaks very
slowly and with difficulty; his speech intelligibility, determined to be 50% for a
novel listener, renders him unable to communicate quickly and effectively in
real-time. DHHS determined that Zent’s communication difficulties prevent him
11
from interacting with others—whether other employees or the subjects of
articles—to the same extent as similarly employed individuals.
[¶25] DHHS’s determination that Zent’s preferred employment outcome of
writer or journalist does not meet the requirements of competitive integrated
employment is consistent with the plain language of 34 C.F.R. § 361.5(c)(9) and
supported by a preponderance of the evidence. We conclude DHHS did not
misapply the statutes and regulations governing VR services in determining that
Zent’s chosen employment outcome of journalist or writer was inconsistent with
the goal of competitive integrated employment.
[¶26] In reviewing DHHS’s resolution of factual disputes, “[w]e will only
reverse if the agency’s findings are not supported by a preponderance of the
evidence and must affirm if a reasoning mind reasonably could have determined
that the factual conclusions reached were proved by the weight of the evidence
from the entire record.” Rennich ex rel. Rennich v. N.D. Dep’t of Hum. Servs.,
2008
ND 171, ¶ 11,
756 N.W.2d 182 (cleaned up). We conclude that a reasoning mind
reasonably could decide the weight of the evidence from the entire record
supports DHHS’s finding that Zent’s chosen employment outcome is not
consistent with the general goal of competitive integrated employment.
III
[¶27] Zent argues the ALJ applied the incorrect standard of proof. Zent argues
that under N.D. Admin. Code §§ 75-08-01-17(3) and 75-08-01-18(1)(c), a clear and
convincing standard applies in VR cases, and that the ALJ thus erred in applying
a preponderance of the evidence standard. This argument is without merit.
[¶28] The clear and convincing standard applies only to eligibility
determinations for VR services. Both 34 C.F.R. pt. 361 and N.D. Admin. Code
§ 75-08-01 provide that the state agency designated to provide VR services must
show by clear and convincing evidence that an individual is incapable of
benefiting from VR services because of the severity of the individual’s disability.
34 C.F.R. 361.42(e)(2)(iii)(B); 34 C.F.R. 361.57(g)(3)(ii); N.D. Admin. Code §§ 75-
08-01-17(3); 75-08-01-18(1)(c). For all other agency determinations, the
preponderance of the evidence standard applies. N.D.C.C. § 28-32-46(5).
12
[¶29] DHHS has determined that Zent is eligible for VR services. Because the
hearing dealt with Zent’s employment outcome and not his eligibility for VR
services generally, the ALJ did not err in applying a preponderance of the
evidence standard.
IV
[¶30] We affirm the district court’s judgment affirming DHHS’s decision.
[¶31] Jon J. Jensen, C.J.
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
Douglas A. Bahr
13
